Montana Taxpayers Are Paying $1.33 Million for an Unconstitutional Law
Montana must pay $1.33 million in attorneys’ fees after a state court struck down Senate Bill 99, the state’s ban on gender-affirming care for transgender minors. Missoula County District Court Judge Jason Marks issued the fee order on July 7, 2026, ruling that the financial cost of defending an unconstitutional law falls on the state, not on the families who challenged it.
The ACLU of Montana, the American Civil Liberties Union, Lambda Legal, and Ashurst Perkins Coie sued Montana on behalf of plaintiff Phoebe Cross and won the underlying case last year. The fee award covers the substantial work of that litigation, including responses to 715 written discovery requests and production of nearly 1,200 documents.
$1.33 million ordered paid by Montana taxpayers to cover attorneys’ fees for a law the legislature was warned was unconstitutional before it passed.
Judge Marks did not soften his language. He noted that multiple witnesses, including Akilah Deernose, director of the ACLU of Montana, and SK Rossi of the Human Rights Campaign, told legislators during hearings that the bill could not be fixed.
“There is no way to fix it because the central tenet of it is unequal treatment for transgender people.”
SK Rossi, Human Rights Campaign, testifying before the Montana Legislature, as cited in Judge Marks’s order
The judge addressed the state’s argument that efficiency and taxpayer protection justified a smaller award. His response was direct: the most efficient path was never passing the law. “The best way to save Montanans money and to promote efficiency is to not pass laws violating the Montana Constitution in the first place,” Marks wrote.
What the Fee Award Means for Future Challenges
Republican Gov. Greg Gianforte signed SB 99 into law despite the constitutional warnings. His office did not respond to a request for comment about the cost to taxpayers.
The ACLU of Montana and Lambda Legal are nonprofits. They depend on court-ordered fee awards, authorized under Montana law, to fund constitutional litigation on behalf of individuals who could not otherwise afford it. Without that mechanism, families challenging unconstitutional laws would absorb legal costs that can run into the millions.
Alex Rate, legal director at the ACLU of Montana, framed the ruling in plain terms: “When the government violates constitutional rights, it should be responsible for the costs of that unlawful action.”
What You Can Do Now
-
Contact the Montana Governor’s office at (406) 444-3111 and ask Gov. Gianforte to publicly account for the $1.33 million in taxpayer funds spent defending a law his administration was warned was unconstitutional before he signed it.
-
Call your own state legislators at the National Conference of State Legislatures directory (ncsl.org/about-state-legislatures/legislative-staff-directory) and ask them to review any pending gender-affirming care restrictions. Cite the Montana ruling as evidence that similar bills carry real fiscal risk to taxpayers.
-
Contact the ACLU of Montana at aclumontana.org/en/contact to report if you or someone you know faces discrimination under a state gender-affirming care restriction. The organization is actively monitoring enforcement in states with active bans.
-
Find your state attorney general at naag.org/find-my-ag/ and ask whether your state has a similar law facing legal challenge, and what the projected litigation cost is to taxpayers.
Sources
Daily Montanan: Court Orders Montana to Pay $1.33M in Trans Care Case Attorneys Fees ACLU of Montana: Senate Bill 99 Case Overview and Legal Background Lambda Legal: Gender-Affirming Care Litigation Tracker Human Rights Campaign: State Legislation Affecting LGBTQ People
[Callout: Legislature warned before passage that SB 99 could not be amended to be constitutional.
Testimony from ACLU of Montana and Human Rights Campaign cited in court order. Daily Montanan]